Opinion
C079821
03-10-2017
THE PEOPLE, Plaintiff and Respondent, v. AMIR JORDAN RICKS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F04203)
Over the course of four hours, defendant Amir Jordan Ricks and his codefendant committed five armed robberies of approximately six individuals. Defendant appeals the sentence imposed following his convictions for multiple robberies and attempted robberies. He contends the trial court erred in imposing the upper term by relying on improper factors. Acknowledging counsel did not object, defendant alternatively argues he received ineffective assistance of counsel. We affirm.
BACKGROUND
Robbery #1—Counts one and two
On June 18, 2014, at approximately 11:00 p.m., Toushoua Thao and his wife Mailee were getting gas at the AM/PM gas station on Amherst Street and Florin Road in Sacramento. While Toushoua was pumping the gas, defendant approached him, wearing a ski mask, black hooded sweatshirt, green jacket, and jeans. Defendant pressed something that felt like cold metal against Toushoua's stomach and said, "Nigger, give me everything you have" or I will "fucking shoot you." Toushoua believed it was a gun. Toushoua complied, giving defendant everything in his pockets, including his wallet with credit cards and driver's license. Codefendant Trinity Metts-Montez, also wearing a mask, approached Mailee and demanded her belongings. When Mailee answered that she did not have anything, codefendant grabbed Mailee's cell phone, wallet, and a bag. Defendant and codefendant then fled the scene. Mailee ran into the store for help and Toushoua called the police.
Robbery #2—Count three
Approximately an hour and a half later, Tyler Miller was inside the Shisha Lounge on Fulton Avenue in Sacramento, when codefendant walked in with a scarf covering the lower part of her face. She looked around, then left, and went back to the car. She returned to the lounge with defendant, who was wearing a mask. Defendant stayed behind looking around while codefendant leaned over the couch Miller was sitting on, pointed a gun at him, and demanded his cell phone. Miller did not immediately comply and codefendant pointed the gun at his head, and said, "Give me the phone or I'm going to shoot you." Miller gave her the phone; codefendant and defendant ran outside and drove away in a white Isuzu Rodeo.
Robbery #3—Counts four and five
At about 12:30 a.m. on June 19, 2014, Justin Reich was working as an attendant at the Chevron gas station near Bradshaw Road and Micron Avenue in Sacramento, when codefendant came into the store and asked if they sold gloves. Reich told her they did not, but thought the convenience store on the corner did.
Shelliy Trimble and Danyielle Rainey were walking to the Chevron, and a white sport utility vehicle (SUV) was exiting the parking lot. Instead of exiting fully, the SUV stopped beside Trimble and Rainey. Codefendant got out of the vehicle, put her bandana across her mouth, and demanded their purses and belongings at gunpoint. Rainey ran into the station yelling they were being robbed and Reich called 911. Trimble pulled her purse closer and codefendant threatened to "put a cap in [her] ass." Codefendant then grabbed Trimble's purse and got back into the SUV, which then drove away.
Robbery #4—Counts six and seven
About 30 minutes later, at approximately 1:00 a.m., Holly Allen was walking with her friend Sierra McGuire towards Allen's mother's home. As the two neared the Mushroom Bar, they heard someone jogging towards them. There was a white SUV stopped in the middle of the street with its lights on. Codefendant was wearing dark clothing and had a bandana over her mouth. Codefendant pointed a gun at Allen, demanded her purse, and then tried to grab the purse. Allen struggled with codefendant and McGuire tried to push codefendant off. Codefendant hit McGuire with the gun and hit Allen in the forehead with the butt of the gun. Allen let go of her purse and codefendant ran away. Allen and McGuire ran into the Mushroom Bar for help, and the bartender called 911.
The Arrest and Identifications
Sacramento County Sheriff's Department Sergeant Todd Deluca was on patrol when he heard dispatches describing the Chevron robbery and the Mushroom Bar robbery, with a description of the white SUV and a partial license plate. At about 1:30 a.m., he stopped defendant driving a white SUV with a matching partial plate within the vicinity of the Mushroom Bar. Codefendant was in the passenger seat.
A search of defendant revealed a loaded, semi-automatic handgun in defendant's jacket pocket, and a gray ski mask in his pants pocket. A search of the vehicle yielded personal property taken from each victim. Allen and McGuire identified codefendant as their assailant. Allen also identified the SUV as the car she saw at the time of the robbery. Trimble and Rainey identified codefendant as their assailant and identified the white SUV as the vehicle that fled the scene. Miller identified the SUV as the one he saw leave the scene. Miller also identified the clothing as that worn by both defendant and codefendant, but could not identify codefendant. The Thaos could not identify the assailants. Toushoua identified defendant's clothing as looking the same as that worn by his assailant. Trimble and Rainey identified the clothing codefendant was wearing as that worn by their assailant. Rainey identified the gun found on defendant as the gun that had been pointed at her. Reich identified codefendant as the woman inside the store, and video surveillance showed codefendant inside the store with a bandanna around her neck.
PROCEDURAL HISTORY
An amended consolidated information charged defendant with five counts of second degree robbery (Pen. Code, § 211—counts one, two, three, four & six) and two counts of attempted second degree robbery (§§ 664/211—counts five and seven). The information also alleged as to all of the counts that defendant was armed with a firearm (§ 12022, subd. (a)(1)) and had committed the offenses while released on bail (§ 12022.1).
Undesignated statutory references are to the Penal Code.
The jury found defendant guilty of all counts and found true the armed enhancement allegations for each count true. In bifurcated proceedings, defendant admitted the on bail enhancement allegations.
In a separate case, Sacramento County case No. 14F01591, defendant pleaded no contest to resisting a police officer with threats of force or violence (§ 69) and admitted an arming enhancement (§ 12022, subd. (a)(1)). As a result of these convictions, the court added an additional eight months on the section 69 conviction, plus an additional four months for the arming enhancement to defendant's sentence.
At the sentencing hearing, the trial court indicated it intended to impose the upper term sentence because "each of these acts was a separate act. But probably most importantly for the upper term is the Court believes, in fact, [defendant] induced another person to become involved in this set of crimes. The defendant also actually exercised leadership during the commission of those crimes.
"The Court believes that as a result of having seen some of the videotape from at least one of the crimes, as well as having listened to the victims' testify during the trial, as well as observing that, in fact, the very first robbery was committed by [defendant] and then subsequent robberies were committed by his co-defendant."
The trial court reviewed letters and statements from defendant's family, and noted that defendant had a supportive family. The trial court felt bad about sentencing codefendant to a longer term than defendant "because it does strike me that you [defendant] were the instigator in this case. But for you, neither of you would be here." Defense counsel interjected that he did not "disagree with the Court's characterization. [But] I do think that there was a lot of evidence indicating the co-defendant, um, had the disposition to participate. . . . [¶] So in light of the Court's leniency on the co-defendant, I'm asking the Court to impose the mid term as opposed to the upper term on the principal term."
After further argument and comments from family, the trial court sentenced defendant to upper term. The court stated: "[H]aving listened to that trial, it was extraordinary that the two of you went on that four-hour, five-hour crime spree with a gun confronting all of those individuals and putting them at risk of almost being killed.
"I also would comment that when you went into -- when [codefendant] went into the club initially, she walked out without having done anything, and it appears from the videotape that she went back into the club because you encouraged her to do so and you watched the door. So I understand that each of the families believes the other is the inducer, but here is the bottom line, each of you had the ability to say no and neither one of you did."
The trial court sentenced defendant to an aggregate term of 15 years four months in state prison as follows: the upper term of five years on count one as the principal term, plus one year on the arming enhancement for a total of six years; on the subordinate terms counts two, three, four, and six, consecutive one-year terms plus four months on each of their corresponding arming enhancements; on counts five and seven, consecutive eight month terms, plus four months on each of their corresponding arming enhancements; plus two years per the plea agreement on the on bail enhancement as to count one. The court imposed consecutive terms "because these were separate events at separate times, even though they all occurred within a five-hour period, each however did involve separate victims."
DISCUSSION
Defendant contends the trial court relied on improper factors in imposing the upper term. Specifically, he argues: (1) the trial court improperly used the same factor to justify imposing the aggravated term on count one as it did for running the terms of counts two through seven consecutively, that the crimes were separate acts; (2) there is not substantial evidence to support the conclusion that defendant exercised leadership and induced codefendant to become involved in the robbery of Toushoua Thao; and (3) the trial court improperly relied on the fact that defendant used a gun and created the risk of death for the victims, because this use of the gun was used to support the arming enhancement.
A defendant's failure to object to the trial court's sentencing determinations when given a "meaningful opportunity" to do so forfeits the claim on appeal. (People v. Scott (1994) 9 Cal.4th 331, 355-356 (Scott); see People v. De Soto (1997) 54 Cal.App.4th 1, 7- 8 [failure to impose a specific objection at sentencing forfeits claim on appeal].) Acknowledging his failure to object below, defendant asserts the issue was not forfeited on appeal, but should we find otherwise, any failure to object was the result of ineffective assistance of counsel. We conclude defendant forfeited his claim and his attorney was not ineffective for failing to object.
A defendant claiming ineffective assistance of counsel has the burden to show (1) counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693-694, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) That is, "there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different." (People v. Kelly (1992) 1 Cal.4th 495, 520.) Defendant has not met that burden.
When a determinate sentencing statute authorizes three possible terms of imprisonment, "the choice of the appropriate term shall rest within the sound discretion of the court." (§ 1170, subd. (b).) "The court shall select the term which, in the court's discretion, best serves the interests of justice." (Ibid.) In exercising that discretion, the sentencing court "may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision." (Cal. Rules of Court, rule 4.420(b).) The relevant circumstances may be obtained from the case record, the probation officer's report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing. (§ 1170, subd. (b); rule 4.420(b).)
Undesignated rule references are to the California Rules of Court. --------
Defendant correctly notes that the trial court relied on two aggravating circumstances improperly. The trial court could not utilize the fact that the crimes were separate acts at separate times as an aggravating factor, because the court used that fact to impose consecutive sentence. (Scott, supra, 9 Cal.4th at p. 350, fn. 12; People v. Moberly (2009) 176 Cal.App.4th 1191, 1197 (Moberly).) Nor could the trial court aggravate the sentence because the use of a gun created the risk of the victims being killed, because the trial court imposed sentence on the arming enhancements. (Scott, at p. 350; Moberly, at p. 1197.) In this case, the threat of bodily harm was necessarily premised on the presence of the gun. Accordingly, using that as a factor to aggravate the sentence was an impermissible dual use of the firearm enhancement. (People v. Garcia (1995) 32 Cal.App.4th 1756, 1777.)
Here, the trial court found the most important factor in imposing the upper term was that defendant exercised leadership and induced another person to become involved in the crimes. There is substantial evidence to support this finding. Codefendant told one of the investigating officers the crimes were committed to "get money for [defendant's] legal issues that he had prior to this." Defendant was the initial and primary perpetrator of the first robbery of the Thaos. They used defendant's mother's car to commit the robberies and defendant was the driver. Defendant was in possession of the gun when he and codefendant were stopped and arrested. The video tape of the second robbery shows codefendant checking out the location, checking back in with defendant at the car, before the pair went into the lounge and committed the robbery. For that robbery, defendant had also parked the car in a location that facilitated an easy get away from the scene. These facts all give rise to a reasonable inference that defendant was the leader and induced codefendant's participation in the offense.
In addition, the probation report and the People's sentencing brief were both considered by the trial court. Each also indicates as an aggravating factor that the crimes indicated planning. The perpetrators were armed and wore masks and clothing designed to conceal their identity. These facts support the conclusion that the crimes were planned. On the other hand, there was not a single applicable mitigating factor in defendant's favor.
" 'Sentencing courts have wide discretion in weighing aggravating and mitigating factors' " and a single factor in aggravation is sufficient to justify the imposition of the upper term. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582; People v. Cruz (1995) 38 Cal.App.4th 427, 433.) In light of the evidence of planning, that defendant was the leader and induced codefendant's participation, and the absence of any mitigating factors, there is no reasonable probability that a lesser sentence would have been imposed had counsel objected to the court's dual use of defendant being armed with a firearm and that the separate crimes were committed in separate locations. (See People v. Avalos (1984) 37 Cal.3d 216, 233.) Accordingly, we do not find ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur: BLEASE, J. ROBIE, J.